As Goes Massachusetts, So Goes the Nation on Automobile Right to Repair? Federal Legislation Introduced to Expand Access to Vehicle-Generated Data

On February 2, 2022, U.S. Rep. Bobby L. Rush introduced the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act, H.R. 6570 (the “Act”), legislation that would require OEMs to make vehicle-generated data more available to vehicle owners. The Act also would pave the way for the Federal Trade Commission (FTC) and National Highway Traffic Safety Administration (NHTSA) to issue regulations for security standards for access to vehicle-generated data, and in many ways mirrors amendments to the Massachusetts right to repair law that were passed by a ballot initiative in 2020, and which are currently being challenged by a coalition of OEMs in Massachusetts federal court.

Increased Access to Vehicle-Generated Data

The Act would prohibit OEMs from employing any technological or legal barrier that impairs the ability of a motor vehicle owner, or its designee, to access vehicle-generated data, which the Act defines as “any direct, real-time, in-vehicle data generated, or generated and retained, by the operation of a motor vehicle related to diagnostics, repair, service, wear, and calibration or recalibration of parts and systems required to return a vehicle to operational specifications in compliance with Federal motor vehicle safety and emissions laws, regulations, and standards.”

Like the Massachusetts right to repair law, if OEMs use wireless technology or “telematics systems” to transmit any vehicle-generated data, the Act would require them to make that data available to the vehicle owner “through a standardized access platform.” “Standardized Access Platform” is defined in the Act as “a cybersecure authentication and authorization system developed by a motor vehicle manufacturer, for the motor vehicles it manufactures, that has the ability to securely access and communicate vehicle-generated data emanating directly from a motor vehicle via direct local and remote wireless data connections bidirectionally and in real-time.”

Under the Act, the FTC would be required to designate an independent entity, not controlled by OEMs, to establish and administer access to the standardized access platforms “not later than 2 years after the date of enactment” of the Act. This independent entity would consist of a cross-section of industry stakeholders and shall be responsible for managing “cybersecure access” of vehicle-generated data. Once the independent entity is created, OEMs would have one year to ensure that data transmitted wirelessly is made available to owners via the standardized access platform. This means that OEMs would have, at most, three years from the date of enactment of the Act to comply with the requirement.

Whether the technology to allow for such a platform will exist by then remains to be seen. The Massachusetts right to repair law requires OEMs to equip vehicles with a similar standardized access platform by model year 2022 vehicles, which OEMs claim is impossible because the technology for such a platform does not yet exist. Some OEMs have responded to the law by disabling telematics systems on vehicles sold in Massachusetts to avoid running afoul of the law until the technology becomes available.

Creation of a New Advisory Committee

The Act also calls for the establishment of a “Fair Competition After Vehicles are Sold Advisory Committee,” which would be led by the Chair of the FTC. The Advisory Committee would be composed of the Director of the Bureau of Competition, the Administrator of NHTSA, and 11 individuals appointed by the FTC from various industry stakeholders. The Advisory Committee would provide recommendations to the FTC on competition issues after motor vehicles are sold, including an assessment of existing and emerging barriers related to vehicle repair.

Promulgation of Federal Security Standards for Access to Vehicle-Generated Data

The Act also would require NHTSA to establish federal standards for access to vehicle-generated data through the standardized access platform, and establishing guidance to ensure the security of such data and vehicles generally. In the lawsuit challenging the Massachusetts right to repair law, the court has noted the absence of federal regulations in this area and NHTSA’s failure to take a firm position on the Massachusetts legislation.

Enforcement by the FTC

The FTC would be tasked with enforcing the Act’s provisions, and a violation of the Act would be treated as an unfair or deceptive act or practice under the FTC Act. Vehicle owners and independent repair shops would be able to file complaints with the FTC, which OEMs would be required to respond to. The Act would require that if an OEM did not satisfy the complaint and make “reparation for any harm injury alleged to have been caused,” the FTC must investigate the matter and issue a final order within five months after the complaint was filed. The FTC’s final order could then be appealed to the U.S. District Court for the District of Columbia.